Date of Last Revision: March 18, 2019
a. These general terms and conditions of license and sale contained herein will apply to all purchase orders (“Order”) accepted by Cargo Spectre LLC (“Cargo Spectre”) from Customer for the products and services (“Products”) stated in the Order. These general terms and conditions together with the Order and any applicable statement(s) of work and other exhibits thereto are collectively referred to herein as the “Agreement”. All orders for Cargo Spectre Products will be governed by the terms and conditions of this Agreement, and none of the terms or conditions of Customer’s purchase order, acknowledgements or any other communication between the parties will be applicable.
b. Cargo Spectre reserves the right, in its sole discretion, to change, modify, add to, or remove portions of this Agreement (“Changes”) at any time. Any such Changes made during Customer’s Software (defined below) license term will become effective upon the first to occur of: (i) renewal of Customer’s Software license term, or (ii) 30 days following Cargo Spectre’s notice describing the Changes; such notice may be provided by sending an email to the address identified in Customer’s account or by posting a revised version of the Agreement incorporating the Changes to the Cargo Spectre website. Customer’s continued use of the Software following the effective date of the Changes will mean that Customer accepts and agrees to the Changes. If, in Customer’s sole opinion, the Changes materially and adversely affect Customer (“Adverse Changes”), then Customer may notify Cargo Spectre in writing within 30 days following Cargo Spectre’s notice to Customer describing the Changes with a reasonable explanation of the effect of such Adverse Changes on Customer, and upon receipt of such notice Cargo Spectre may elect to: (x) waive the Changes for Customer for a specific time period, or (y) provide Customer with an additional 30-day period for Customer to elect in writing whether to accept the Adverse Changes despite the adversity or terminate Customer’s Software license. If Customer elects to terminate Customer’s Software license, then Customer will give Cargo Spectre written notice of termination on such grounds within the additional 30-day period, and Cargo Spectre will not enforce the Changes with respect to Customer until the end of the additional 30-day period and Cargo Spectre will provide a pro-rata refund of any prepaid unused Software license fees paid by Customer before such termination.
a. Customer will pay to Cargo Spectre the fees stated in the Order. Unless otherwise stated in the Order, all amounts due to Cargo Spectre are due net monthly after receipt of Cargo Spectre’s invoice.
b. Customer will pay, and all prices are exclusive of, sales, use, excise, withholding or any other taxes applicable to the sale, use, license or delivery of the Products.
c. All sales are FOB origin; transportation, insurance, customs, duties and any other charges are not included in the Product prices and will be paid by Customer.
d. Cargo Spectre may charge the lesser of 1.5% per month or the maximum lawful rate on overdue amounts. If Cargo Spectre is required to bring legal action to collect delinquent accounts, then Customer will pay reasonable attorneys’ fees and costs of collection and any related legal action.
a. Customer assumes title and the risk of loss or damage to the hardware Products (“Hardware”) upon delivery FOB origin.
b. The time for delivery will be established by the parties after Cargo Spectre accepts the Order. Unless otherwise stated in the Order, Customer may not delay or cancel any Order or delivery.
a. Unless otherwise stated in the Order, all Products are sold and licensed “AS IS” without warranty and CARGO SPECTRE DISCLAIMS ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
b. Customer assumes all responsibility and liability for its use of the Products and will indemnify and hold harmless Cargo Spectre from damages, liabilities, settlements, costs and legal fees incurred by Cargo Spectre arising out of Customer’s use of the Products.
c. No written or oral statement made about any Product by an employee or agent of Cargo Spectre will be effective to provide or extend a warranty for the Products.
NEITHER CARGO SPECTRE NOR ITS SUPPLIERS WILL BE LIABLE TO CUSTOMER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT CARGO SPECTRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (C) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID TO CARGO SPECTRE FOR THE PRODUCTS FROM WHICH THE CLAIM OR CAUSE OF ACTION AROSE.
a. Cargo Spectre and its licensors retain all right, title and interest including, without limitation, intellectual property rights, in and to the software Products (“Software”) and documentation including, but not limited to, all images, photographs, animations, video, audio, music, text, data, computer, code, algorithms, and information provided or made available by Cargo Spectre to Customer.
b. Customer understands and agrees that Cargo Spectre is constantly improving its Products, Software and related services for the benefit of all Cargo Spectre's customers including Customer and in order to do so Cargo Spectre desires to upload data saved on the Product about the output of each single freight dimensioning operation by the Product (including, but not limited to, the 3D data of the freight, the dimensions, any calibration data that was used for that dimensioning, etc.) (“Freight Scans”). If Customer opts-in and authorizes Customer’s Freight Scans to be uploaded to Cargo Spectre’s site, then Customer grants Cargo Spectre the perpetual non-exclusive right and license to use such Freight Scans for purposes of undertaking internal research and development, and assessing and improving the Product, Software and related services. Cargo Spectre will not disclose such Freight Scans in a way that identifies them specifically with Customer or that otherwise uses or discloses Customer’s Confidential Information.
c. For a period of five years following initial disclosure of any confidential information (“Confidential Information”) by a party (“Disclosing Party”), the other party (“Receiving Party”) will (i) hold the Disclosing Party’s Confidential Information in confidence; (ii) not disclose the Disclosing Party’s Confidential Information to third parties; and (iii) not use any of the Disclosing Party’s Confidential Information for any purpose except to perform this Agreement. The Receiving Party will treat the Disclosing Party’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but with no less than a reasonable degree of care under the circumstances. Because damages alone may not be adequate compensation for loss of Confidential Information, the Disclosing Party, in addition to any other legal and equitable rights it may have, will be entitled to an injunction against the breach or threatened breach of this Section by the Receiving Party.
d. Cargo Spectre will provide Software maintenance and support services to Customer at no additional charge in accordance with Cargo Spectre’s then-current standard Software maintenance and support terms and conditions. Such maintenance and support will include Software updates and upgrades which Cargo Spectre makes generally available to all its customers at no additional charge. Cargo Spectre reserves the right to charge for new features or functions that are separately licensed and priced from the Software containing the original functionality. For on-site support requested by Customer, Customer will (i) pay Cargo Spectre’s standard rates and fees; (ii) pay Cargo Spectre for any additional costs incurred by Cargo Spectre if Customer’s site is not ready for installation as stated in the installation requirements when the Cargo Spectre technician arrives on Customer’s site; and (iii) reimburse Cargo Spectre for all reasonable travel-related expenses.
a. Subject to the terms and conditions of this Agreement, Cargo Spectre grants to Customer, under Cargo Spectre’s intellectual property rights, a non-exclusive, limited, personal, non-sublicensable, and non-transferable license only to: (i) use the Software on the Hardware on which it was pre-installed when delivered to Customer, or install standalone Software (not pre-loaded on Hardware before delivery) on Hardware or designated equipment, as applicable, for which it was intended, as stated in the Order or documentation; (ii) use one copy of the Software for each license fee paid as specified in the Order; (iii) use the Software during the Software license term stated in the Order and in accordance with any other use restrictions stated in the Order or documentation (including, but not limited to, copy or user limits); and (iv) solely for Customer’s internal business purposes.
b. Customer may make one copy of the Software and documentation for back-up purposes, provided that any such copy includes Cargo Spectre’s copyright and other proprietary notices.
c. The license granted herein is granted solely to Customer, and not to any affiliate of Customer. The license granted herein does not authorize Customer (nor may Customer allow any third party) to: (i) copy (except for one Customer back-up copy), distribute, use or allow third party access to the Software, except Customer’s agents and representatives for whom Customer is responsible; (ii) decompile, disassemble, reverse engineer, translate, convert or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason, the source code or source listings for the Software or any trade secret information contained in the Software (except to the extent that such acts may not lawfully be prohibited and in such event, if required under applicable law, upon Customer’s request, Cargo Spectre will provide information necessary for Customer to achieve interoperability between the Software and other software for a nominal administrative charge); (iii) modify, incorporate into or with other software, or create a derivative work of any part of the Software; (iv) separate and use any components of the Software on more than one Hardware device; (v) lease or lend the Software; (vi) disclose the results of any benchmarking of the Software, or use such results for its own competing software development activities, without the prior written consent of Cargo Spectre; (vii) attempt to circumvent any usage limits or other license, timing or use restrictions that are built into the Software; or (viii) remove, obscure, alter or obliterate any product identification, logo, copyright, trademark, proprietary or other notices that appear on the Software. It is further expressly understood and agreed that Customer’s business operations will not include, without Cargo Spectre’s express written consent, any use of the Software for the purpose of any transaction: (A) undertaken for a fee or other consideration, (B) performed substantially for the benefit of any third party, or (C) which is not reasonably related to Customer’s business operations.
d. The Software may include open source software (“OSS”). The license terms associated with OSS require that Cargo Spectre provide copyright and license information to Customer. A list of the OSS included in the Software and applicable license terms are available at Cargo Spectre’s website or in Cargo Spectre’s Software documentation.
e. Customer’s rights in the Software are limited to those expressly granted in this Section 7. Cargo Spectre reserves all rights and licenses not expressly granted to Customer under this Section 7.
a. If Customer posts a picture or screenshot of the Cargo Spectre Products or otherwise references Cargo Spectre and/or its Products on Customer’s website or in any advertisements or marketing materials, then Customer must reference Cargo Spectre as the source using Cargo Spectre’s name, logo and Cargo Spectre copyright notice in such picture, screenshot, advertisement, marketing material or reference. Customer will provide Cargo Spectre with a copy or link to such attribution. All use and goodwill associated with Cargo Spectre’s name and logo will inure to the benefit of Cargo Spectre.
b. Cargo Spectre may identify Customer as a customer of Cargo Spectre and a user of the Products in marketing materials, on Cargo Spectre’s website and in connection with general lists of customers. Identifying Customer as a customer may include using Customer’s name and/or using an exact copy of Customer’s corporate logo. Customer authorizes Cargo Spectre to publish one whitepaper per year on Customer’s experience and use of the Products; such whitepaper will be subject to Customer’s prior written consent (including via email), which consent will not be unreasonably withheld or delayed. Cargo Spectre will provide Customer with a copy of such whitepaper at least 30 days in advance of publishing it and will consider in good faith any reasonable comments, suggestions and edits from Customer; provided, that if Customer does not respond before the end of such 30-day period, then such whitepaper will be deemed approved by Customer.
a. This Agreement will become effective on the effective date of the Order and will remain in force for the agreed upon Software license term stated in the Order, unless terminated earlier as provided in this Agreement. Cargo Spectre may terminate this Agreement for any or no reason upon 30 days prior written notice to Customer. This Agreement will automatically terminate, without any further action by either party, if Customer breaches any provision of this Agreement. Customer may terminate this Agreement upon written notice to Cargo Spectre if Cargo Spectre materially breaches a provision of this Agreement and fails to cure such material breach within 30 days after receiving written notice of such material breach from Customer.
b. Upon termination of this Agreement: (i) Customer will keep all purchased Hardware; (ii) all rights granted to Customer for the Software hereunder will immediately terminate and Customer will promptly destroy all copies of the Software and documentation in Customer’s possession or control; and (iii) each party will destroy all of the other party’s Confidential Information in its possession or control. Upon request, each party will provide the other party with written confirmation it has complied with the foregoing.
c. Except as otherwise set forth in this Agreement, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Termination of this Agreement will not relieve Customer of its obligation to pay all fees that accrued before such termination.
d. The rights and obligations of the parties contained in Sections 2, 3, 4, 5, 6, 9 and 10 of this Agreement, and any other provisions herein which by their nature or implication survive, will survive the termination of this Agreement.
a. This Agreement is governed by the laws of the State of Texas, and the United States, without reference to conflict of laws principles. The United Nations Convention on Agreements for the International Sale of Goods will not apply to this Agreement. The sole jurisdiction and venue for all legal actions relating to this Agreement will be the State and Federal courts in Houston, Texas. Both parties consent to the jurisdiction of such courts with respect to any such actions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees.
b. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
c. The parties are independent contractors.
d. No waiver of any provision of this Agreement, nor consent by Cargo Spectre, to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against Cargo Spectre unless it is in writing and signed by a duly authorized representative of Cargo Spectre, and then such waiver will be effective only in the specific instance and for the specific purpose for which given.
e. The failure of Cargo Spectre to enforce at any time any of the provisions of this Agreement will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of Cargo Spectre to enforce each such provision thereafter.
f. Customer will not have the right or ability to assign or transfer (whether by merger, operation of law or otherwise) this Agreement, in whole or in part, including without limitation any obligations or rights under this Agreement without the prior written consent of Cargo Spectre, which consent will not be unreasonably withheld. A change of control of Customer will be deemed an assignment for purposes of this Section. Any attempted assignment or transfer made in violation of this Section will be void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
g. Cargo Spectre will not be liable to Customer for any loss, expense or damage caused by or resulting from any force majeure event or any cause or occurrence which is beyond the reasonable control of Cargo Spectre including, without limitation, act of God, fire, accident, war, governmental laws or regulations.
h. Customer will not export or re-export the Products or related documentation or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
i. In the event of a conflict between these general terms and conditions and the Order, the Order will prevail.
j. This Agreement contains the complete understanding and agreement of the parties and supersedes all prior and/or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein, and any modifications must be in a writing signed by both parties, except as otherwise provided herein.